[2009] KEHC 3172 (KLR)
The court found that the core dispute between the parties arises from the succession of the estate of the late Kipketer Kirui, and that the outcome of Succession Cause No. 21/2002 will determine the rightful ownership and entitlement to the suit property, Kericho/Kipchimchim/2366. Since the succession cause is still...
Source-derived case information.
- Citation
- [2009] KEHC 3172 (KLR)
- Parties
- Plaintiff: Andrew Keter Kirui; Defendant: Ali Hassan Keter
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 91 of 2005
- Procedural Posture
- Civil Suit / Interlocutory Ruling on Stay Pending Succession Proceedings
- Outcome
- Suit stayed pending determination of succession cause.
- Legal Topics
- Eviction Proceedings, Succession Disputes, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Keter Kirui
Plaintiff
Ali Hassan Keter
Defendant
Procedural Posture
Civil Suit / Interlocutory Ruling on Stay Pending Succession Proceedings
Legal Issues
- 1 Whether the High Court should stay the eviction suit pending the determination of the related succession cause.
- 2 Whether the Land Disputes Tribunal had jurisdiction to determine title to registered land.
- 3 Whether the plaintiff, as registered proprietor, is entitled to orders of eviction against the defendant.
Ratio Decidendi
The court found that the core dispute between the parties arises from the succession of the estate of the late Kipketer Kirui, and that the outcome of Succession Cause No. 21/2002 will determine the rightful ownership and entitlement to the suit property, Kericho/Kipchimchim/2366. Since the succession cause is still pending and its determination is necessary for the just resolution of the present eviction suit, it is appropriate and just to stay the proceedings in the civil suit until the succession cause is finalized. The court also noted that the Land Disputes Tribunal lacked jurisdiction to determine title to registered land, and that only the High Court can make such determinations....
Court Disposition
Suit stayed pending determination of succession cause.
Orders
- The suit is stayed pending the finalization of the probate matter in Succession Cause No. 21/2002.
- Judgment in this suit to be finalized after completion of the succession cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO
Civil Suit 91 of 2005
ANDREW KETER KIRUI ………………………………………… PLAINTIFF
VERSUS
ALI HASSAN KETER ………………………………………… DEFENDANT
RULING
I: Procedure
1. This suit was filed by the Plaintiff herein on 30th August, 2005. It concerns land parcel Kericho/Kipchimchim/2366. The plaintiff seeks orders of eviction of the defendant who is also his step brother from the land.
2. An overview of this case is that sometime in the year 2002 a law of Succession Cause was filed being No. 21/2002 concerning the estate of one Kipketer Kirui (now deceased). He had five wives and therefore five houses.
3. The parties appeared before the Land Disputes Tribunal claim No. 336/2004 Ainamoi in which the tribunal rightly held that they had “no powers” to interfere with title already issued to the plaintiff. That this matter was for the High Court to determine.
4. In the year 2005, the plaintiff who is the registered proprietor of the land in dispute filed this present suit seeking to evict the defendant from the suit land. The trial commenced before Kimaru J (7. 2.07). He remained with only one witness to be heard and left this station. Under order 17 r 10 Civil Procedure Rules this court took up the hearing from where it was left off. It transpired that there existed a cause in the law of succession that effected this case. This court gave orders that the said succession cause be made available. This was done in May, 2009.
5. This court having perused the said Succession cause and noted orders of this court that the matter be and is coming up for hearing exparte, on 8th June, 2009 at 9. 00a.m to hear the pending application of 2nd December, 2005 on the issue of revocation of grant.
6. Consequently the suit before this court is stayed pending the finalization of the probate matter. Once completed judgment on this suit be finalized.
7. The cost be in the cause.
DATED this 25th day of May, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocates
A.N. Matwere advocate instructed by M/S Matwere & Co. advocates for the Plaintiff – present
J.M. Motanya advocate instructed by M/S Motanya & Co. advocates for the defendant – present